October 5, 2005

Everyone's talking about the George Will column about Harriet Miers, so let me read it too, this morning, as I find my instinct to defer to the President's choice fading to nothing:

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists....

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Who seriously believes the evidence exists to make this demonstration? If Will is right up to this point and this is the test, the nomination should be doomed.

You know, I really felt my willingness to trust the President's choice evaporating as I wrote this post earlier this morning. Someone in the comments to that post wrote:

How many sixty year old women have better credentials for the Supreme Court than Harriet Miers?

Law Review Articles Editor while one of the few women in law school.

Clerkship in the Federal District Court as a prelude to becoming a trial lawyer.

Became Managing Partner of a premier Texas Law Firm the hard way (she earned it).

President of the state bar of the second largest state in the country.

This attorney has practiced law in more of its many manifestations than all but a few attorneys in the United States.

She not only broke but shattered the glass ceiling with performance at all levels of the practice of law.

Why is that not truly stellar, considering that in 1970, when she entered the legal profession at age 25, fewer that five percent of practicing lawyers were women?

I responded:

"How many sixty year old women have better credentials for the Supreme Court than Harriet Miers?" But 60 was considered too old to be a candidate until just now and apparently still is for the males. And what male candidate who is considered Supreme Court material takes a mid-career job doing something like the Texas Lottery Commission? Can you picture Roberts doing something like that even early in his career? Even if she was in the limited set of women who were law grads in 1970, huge numbers of women flowed into the profession very shortly later. Go to women in the 50 to 55 age range, the same target range used for the male candidates, at there are plenty of individuals with superior credentials. My problem isn't with her lack of judicial experience, it's that there are no elite credentials of the sort that say this is a superior intellect -- a mind that should decide the most important issues for us over a period of decades! If you think about it that way, her nomination is an absurd imposition on us by the President.

If Miers is intended to reflect the judicial philosophy of the president (that's what I get from his remarks, anyway), shouldn't we be asking what that judicial philosophy is? I've seen nothing to suggest that he's given the issue and great thought.

Do you think Miers made the same list of potential justices as Roberts?

The law school thing is complete snobbery and neglects considerations of WHY people choose certain law schools or universities. Not everyone can go to Harvard etc..., even if they are 'clever' enough, for personal, financial and other reasons. If America continues to perpetuate the idea that only Ivy League graduates should hold positions of power then it will be simply ensuring that (predominantly) only rich people can hold positions of power

What do you consider to be "elite" credentials? Better yet, why must a nominee have "elite" credentials? It sounds like you are suggesting that the pool for Supreme Court Justices is limited to those who follow the path from Ivy League to Circuit Court/Supreme Court clerkship to the Department of Justice or a prominent corporate law firm and on to a Circuit Court Judgship. You do not strike me as an elitist so I am a little confused by your requirement for "elite" credentials. I am not suggesting that a nominee should not have a record of academic and professional excellence and integrity only that a nominee should not be exlcuded because she or he has not followed a certain, i.e. elite, path to the Court a la Roberts.

Interesting that George Will just discovered the "advise and consent" clause in the Constitution. Does anyone think he would have penned the same article if Bush had nominated an equally undistinguished but much more conservative woman?

The Miers nomination is not a bad choice. We could use a justice that has actually spent time doing what most lawyers in this country do - practice law. I don't think any less of her for not graduating from a top ten school. I find it disturbing that so many of the people that govern us come from the same 7-8 schools.

Just who was it that considered 60 to be too old for the Supreme Court? Certainly not the 59 year old President of the U.S. Certainly not the 64 year old VP. None of the over 60 year old Senators on the Judiciary Committee.

Hillary Clinton is close to 60. Is she too old? John Kerry is over 60. What about him? Most everyone considering in the mix for President is now around 60. Is that too old?

I'll tell you who think 60 is too old. The younger baby boomers. They have some youth fetish.

Just a few months ago, talking heads were advocating eliminating life tenure on the Supreme Court.

What in Justice Hugo Black's biography before he was nominated suggested he had a superior intellect? Same question regarding Justice Jackson? Same regarding Justice Brennan? Or Justice Warren? Or Justice Thomas?

I daresay every one of those Justices today has at least one biographer who will testify book form that each of these Justices were in one way or another intellectually superior.

I for one am anxious to see her in action. If she acquits herself well in the hearing, I believe she should be confirmed. To do anything else is to denigrate a pioneer in the woman's movement who has performed with distinction and excellence.

Quite aside from Yale and Harvard, why didn't she go to Texas, the state school, which is a very fine law school?

As to age, my point was responding to the commenter who said she is special because not that many women her age became lawyers. I said look to the women who are the same age as the MEN who were being considered, such as Roberts. There are many more women at that level. Surely, more than 20 years after O'Connor's appointment, we shouldn't be relying on the trailblazer credential!

One funny thing about the elite snobbery of "top tier" is that much of the faculties of much of the "lower" law schools went to these top tier law schools and yet their own students are not elite enough to serve at the top levels. A 3.5 at Harvard with grade inflation means diddley to say nothing of the wisdom and discernment needed to be a great justice.

And Lady S. "Bush as idiot" -- that's original. Did you go tto Yale before grade inflation? How 'bout Harvard for an MBA -- also before grade inflation? Can you fly a fighter jet? Can you put together a multi-million dollar baseball stadium deal? How 'bout beat a very popular and very well spoken incumbent governor? What about make friends with the yellowest of yellow dog Democrats (Lt. Gov. Bob Bullock) and get your agenda through?

Idiot indeed.

I agree that we don't want average joe/jane running the show, but we don't want ivory tower "my **** doesn't stink" joe/jane either.

As to what I mean by elite credentials: I mean, as I said, evidence that the nominee is someone who can be trusted to spend the rest of her life making profound decisions for all of us. She needs to be a very smart, accomplished, independent, principled, etc. That she practiced law successfully and pleased the President as his lawyer is not good enough.

I agree with the Professor. Consider this: every other justice on the Supreme Court was a Circuit court judge before they were elevated to the Supreme Court. The only one who was not -- O'Connor -- was an appellate court judge at the state level.

Consider the academic credentials of the other justices. John Paul Stevens earned the highest grades in the history of Northwestern Law School. John Roberts was at the top of his class at Harvard. Scalia, Souter, Breyer, Kennedy also graduated from Harvard with high honors. Ruth Bader Ginsberg was third in her class at Columbia. Rhenquist and O'Connor were, I believe, first and third in their law school class at Stanford. Going back a generation or so, Justice Blackmun earned summa cum laude honors from Harvard Law School. Do you know how hard that is? They're not even given out every year . . . my dad's former law partner was 2nd in his class at Harvard and he earned a 'mere' magna cum laude.

Has Miers had a very successful career in law? Sure she has. But there are only nine Supreme Court justices, and the nation deserves that they be filled by the very best legal minds. Sure, you can go to a non-top-five law school and still be a first-rate legal mind. However, NOBODY has made that claim about Miers. Ever. She's just a good lawyer, like thousands of other good lawyers out there. I think we deserve better.

Nuts-and-bolts question:If the Prez is a former (or current?) client of Miers, would she be obliged to sit out any case to which the Prez is a party, leaving the Court ripe for a heartbreaking tie vote?

I think this nomination is all about culture. The reaction to Miers is a reacton from the elite who feel a little uncomfortable with the non-intellectual culture of America, the same culture that voted George W. Bush into Office.

With Roberts, Bush nominated D.C. With Miers he is nominating Texas. The elites don't really like Texas or its culture. They don't like that Miers spends her free time teaching sunday school when she should have been off writing articles.

All the other so called high powered intellectual conservitives like Brown, Luttig, McConnell are cultural elites. They have worked all their lives for governemnt or in law schools and run with people in those circles. Is this what Althouse refers to as Superior credentials?

Summary of Miers articles listed above: the first and third don't count. They are basically one page advertisements asking others to join forces with her efforts to reform multijurisdictional practice - no legal analysis. The second goes into a bit more depth about multijurisdictional practice issues, but is only 5 pages and again no substantive legal analysis. The last article is the only real law review article in the sense that it engages in real legal analysis, expoloring appellate developments in insurance law.

Sloanasaurus -- really, I think that Texas has nothing to do with it. In case you haven't noticed, Washington DC is run by Texans -- the Bushes, Dick Cheney, Tom DeLay.

It wouldn't matter if she was from Texas, if she had gone to a better law school. The University of Texas is one example. OR if she had clerked for a Federal appellate judge. OR if she had previous judicial experience. OR any number of other things that would give her better credentials than she has currently.

Really, at the end of the day, this nomination is 'unserious.' Nobody with a proper respect for the Supreme Court would make a nomination like this. This is the high-court equivalent of taking a former professional wrestler and electing him governor.

but then again, I wouldn't characterize that one as a real law review article either, since it wasn't published in a real law review, but was just an ALI summary of recent insurance developments, with no scholarly analysis included...

One funny thing about the elite snobbery of "top tier" is that much of the faculties of much of the "lower" law schools went to these top tier law schools and yet their own students are not elite enough to serve at the top levels. * * *I agree that we don't want average joe/jane running the show, but we don't want ivory tower "my **** doesn't stink" joe/jane either.

And so does respectable populist anti-elitism ever so quickly become rank anti-intellectualism. Heavens, we shouldn't want a Justice who was good in school! Someone who was kept out of Harvard by the money factor seemingly would have a gripe against any rubric that didn't take his lack of opportunity into account; I daresay no one suspects it was the cost that was keeping young Ms. Miers out of the Ivy League.

You seriously believe that teaching Sunday Schol is equal in value to honing one's skills in constitutional anlaysis and interpretation for a Supreme Court candidate? As a lawyer, I want guidance in my Court from experts in the *Constitution*, not the Bible. The second doesn't preempt the first, but if she did indeed choose to forsake constitutional scholarship and has no real experience in constitutional interpretation, don't you see how this might be just a wee bit troubling considering her duties and responsibilities as a Supreme Court Justice to provide coherent, intelligent guidance in constitutional interpretation to the rest of the nation?

"The reaction to Miers is a reacton from the elite who feel a little uncomfortable with the non-intellectual culture of America, the same culture that voted George W. Bush into Office."

Well, sure, but unlike the Presidency, the Court is inherently an intellectual institution. Even judging as a "strict constructionist" requires intellectual muscle, especially if you expect to be persuasive and influence colleagues on the Court and in the academy.

Look at the difference between the furious volley of law review articles a Scalia opinion can set off as opposed to the deafening yawn heard when Thomas decides to take out his pen. Even if you generally disagree with Scalia, as I do, you have to admit that his evil genius contributes to a vibrant Court. Texas Life Insurance Update doesn't suggest an intellect that will make a similar contribution.

And what Doug asked -- doesn't her role raise conflict of interest/recusal issues in future challenges to the Bush administration's actions and executive powers? I haven't seen this one addressed at any length yet.

Jack Roy -- I never said it wasn't a great thing to go to those schools. But they are not the end all and be all of existence. Blackmun went to harvard -- and that great mind wrote the crap that is the Roe opinion.

Plenty of idiots go to top tier schools. It's an indicator of competence, but it is not even a major factor. And again Harvard grads populate the law school faculty ranks and yet their own students are insufficient? If Harvard product can't reproduce like results what's the point?

I am anti-elite to a point, but not anti-intellectual. I just don't think the "elite" academy is the source of all or even most (today) intellectual accomplishment and expression.

The Ivy League is losing its cache and is (or should be) scared to death. Perhaps this will act as motivation to move beyond speech codes and dumbed down classes and grade inflation.

I agree that a nominee should be smart, accomplished, independent, principled, etc. But, my question is about how we (or you) know that a nominee has all these qualities or credentials. It seems clear that most reasonable people agree that judicial experience is not a necessary prerequisite to becoming a nominee(albeit one that is desirable). So what is left besides education, the practice of law and legislative or executive branch experience from which to determine if a nominee is smart, accomplished, independent and principled. Miers has been educated, she has practiced law for a number of years and has experience in the executive branch of government. Do you feel her practice of law and experience in the executive branch is insufficient to know whether she is smart, accomplished, independent and principled? Or have you concluded that she is not those things. BTW, would you consider being graduated from UW at Madison an "elite" crediential?:)

As to the "elitism" comments, I wonder (as a student who is attending my home state law school because it is dirt-cheap) if Bush nominated someone who went to a low-tier law school, but then went on to distinguish him/herself with a nice clerkship and writing and a good judicial record and such, if we'd still be talking about the "elitism" of it all.

"....Really, at the end of the day, this nomination is 'unserious.' Nobody with a proper respect for the Supreme Court would make a nomination like this. This is the high-court equivalent of taking a former professional wrestler and electing him governor...."

This kind of talk is really ridiculous. A fair examination of H. Miers record shows that she has much better credentials than Rehnquist or Thomas had when they were appointed. She is a super star lawyer. One of a small number of SuperStar lawyers in this country. After retiring from being White House counsel she could teach law anywhere, including Harvard or Yale etc... That is not a possibility for the "thousands of other lawyers around the country."

I think what is driving all the "betrayal attitude" over this nomination is that the nomination of Miers took aways the fight that conervatives wanted and had a very good chance of winning. They feel betrayed because of all the B*S* that has been dished out by liberals over the war and blaming Bush for Katrina, etc... Now they are venting for not being able to have this fight. Democrats don't want to fight because they know it is a loser for them and they dont want to face the wrath of their special interest groups. They would rather get a pro-lifer in there without having to fight. H. Miers is their ticket to avoiding this confrontation.

Everyone knows including the Dems, that Miers will be hard core conservative.

"It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role." Like what? Being able to read the Constitution and a law, hear arguments pro and con about said law and its use or misuse, and decide whether or not to strike it down? Or, as current SCOTUS did in Kelo, decide the law could not be tossed out but legislatures could be told the law is nonetheless bad and should be altered? Maybe she should be interested in Mark Twain but not Norman Mailer? Maybe she should be able to sing, but not dance? --------

I am troubled by lacking knowledge about her. Can't enthusiastically support her. But I'm not taking to the streets to oppose.

But that cuts both ways. We do not know if she will be "conservative" - but neither do we know she will be "liberal". But what evidence we do have shows to the right: yeah, she supported Gore - when he was a firebrand for 2nd Amendment and such: his audience changed later, so did his stance.

We don't know if she's smarter than the norm - but we don't know that she is not: what indications we do have show someone who is at least a bit above the ruck.

Her credentials do not include being a judge, though she has argued before many. Piffle. Yet again, I suggest considering John Marshall, whose first judgeship was on SCOTUS - and he did pretty well.

She didn't go to a prestige law school, and neither did she go to State. Huh? Again, I don't know why - but how about could not afford the one and did not like class size and lack of access to proffessors at the other - or just wanting to try to be a big frog in a small pool? -------

Basically, seems Bush chose her because he knows and trusts her - and has seen what became of his father's proposing candidates on the wors of experts without knowing them himself. OK, cronyist, and we know how that worked out for Grant. But we also know how it worked out for Alexander the Great. Nor do I unreservedly trust Bush (either of 'em).

Personnaly, as I remarked yesterday on another blog, I'd rather see Donald Trump nominated. But his "lack of qualifications" is even more true, and who knows about his intellect?

Bush nominates Miers. Everybody - and I mean everybody - piles on: a justice has to be evaluated by his or her QUALIFICATION, not ideological friendliness to the President!

Bush agrees, and either withdraws her nomination or lets it get shot down.

Then he nominates someone with a profoundly conservative ideology, and impeccable credentials - and the Senate is unable to argue against that nominee, because they just finished staking themselves to the position that qualifications, not ideology, are material.

You have to be profoundly (perhaps blindly) loyal to this President to believe that this is some rope-a-dope nominee. Just as the Dems only have limited political capital to expend on a filibuster (if they were to chose to try one), the President has limited political capital to expend on pushing through his nominees. I would think it would be odd to say the President was made stronger by withdrawing his nominee. Maybe you are right though, and Reagan wanted Kennedy all along.

Incidentally, if you believe that this is a "rope-a-dope", do you think the President is lying when he says she is the best qualified? What other lies is he telling us?

As to what counts as evidence for me: I'm not requiring any one necessary thing. I just want SOMETHING. So far, we've been given NOTHING to prove this is a first rate mind. We waited 12 years for an appointment. Now we have had two, and the first was EXACTLY what was right, and I respected Bush for that. But that doesn't mean the next one is a freebie! I want more of the same things we saw with Roberts.

I certainly respect the state law schools, especially since many people choose them for financial reasons. But Miers didn't go to the University of Texas. In any case, the less elite your school and your academic record, the more other evidence we need.

Is there a SINGLE PIECE OF WRITING on the subject of constitutional law, written by Miers and showing high qualities of mind? This is a lawyer who spent time dealing with a state's LOTTERY problems and, apparently, wrote only minimal practice-oriented articles.

"[I]t's that there are no elite credentials of the sort that say this is a superior intellect -- a mind that should decide the most important issues for us over a period of decades." The first part of that statement is certainly correct, but the remainder of it gives the appearance of being an academic's conceit, or worse, and academic lawyer's conceit. Who says the Supreme Court is to decide the most important issues for us? Certainly the Court has the ultimate constitutional charge to decide "cases or controversies", which phrase, thankfully, at least most of the time, excludes political disputes. Are all the most important issues subject to judicial resolution? Don't the decisions of the elected branches of government take action to decide "important issues" as well? Don't business people resolve important issues without litigation?

It had been said of Justice Thomas that clearly notwithstanding President Bush's statements he was not the "most qualified" candidate for the job, but at the same time, while supposedly lacking the brilliant intellectual skills of his fellow justices, clearly does a "workmanlike" job. I'll settle for workmanlike with predictable results any day over supposed brilliance that produces seems like so much caprice to the rest of us dummies. "Us dummies" would likely include the CEOs of more than a few Fortune-500 companies and any number of research scientists and engineers. The ways in which business people have to resolve "important issues" are made so much more complicated, because certain justices with "elite" credentials but no other practical life experience reason to outcomes that could not be predicted by common sense or reference to legal text.

Sure, there are no "elite" credentials, but having years of courtroom experience, being managing parter at a large law firm, and being president of the State Bar of Texas are other types of credentials.

The President's choice may have been a bad one because it is difficult to gauge the value of such other credentials, but they are not valueless.

And a word to Lady S who thought the President was a complete idiot - he got his undergraduate degree from Yale and an MBA from Harvard. Former Chief Justice Warren Burger sold insurance by day and went to law school at night. Where did you go to school?

I'm hearing an awful lot of results-oriented defenses of Miers here that seems to conflict with prior statements of conservative commentators here criticizing liberal judges for being results-oriented. If you're really willing to defend Miers just because of the conservative results you think she's going to hand you, you lose your standing to charge liberal judges with being results-driven.

Let me say again, I don't know enough about Miers to push her: but I also don't know enough to be against her - just uneasy - and "criticism" like Will's is more likely to raise my hackles than get me to oppose her.

As to what I mean by elite credentials: I mean, as I said, evidence that the nominee is someone who can be trusted to spend the rest of her life making profound decisions for all of us.

I might be more convinced by the 'elite credentials' are essential argument if the sitting justices with such credentials hadn't lately been making such a godawful hash of the some of the most important decisions they faced (Raich and Kelo). It is clear to me that both of those decisions were basically political rather than legal and whether or not the justices had brilliant legal minds didn't really enter into it.

What reason do we have to believe that somebody with elite credentials is more trustworthy in making such decisions such as those?

Putting aside every other issue, if Miers were quizzed today on U.S. Supreme Court precedent, it is likely she would do more poorly than a first or second year law student vaguely familiar with Supreme Court precedent.

In other words, Miers is probably no more qualified today to opine on constitutional issues than the average student in one of Ann's constitutional law classes.

As Ann would agree (at least when she is knee deep in grading exams), that is a scary thought.

I think the president has been impressed with Harriet Miers for a long time. And has often relied on her. On her latest assignment, she selected John Roberts as Bush’s SCOTUS candidate who sailed through the confirmation hearings with flying colors, Ms. Miers demonstrated (to Bush) that she knows what the Supreme Court is all about. I think the President believes that Ms. Miers has the ability to sit on the bench as well as select people to sit on the bench.

He obviously trusts her judgment in spite of the lack of obvious credentials.

Saying you're not an anti-intellectual and actually not being an anti-intellectual are two different things. I have no particular reason to doubt your sincerity, but there is an undeniable current of anti-intellectualism and resentment in this country, and I don't think it can be denied that it finds a more welcome home in certain political quarters.

That plenty of idiots attend Ivy League schools can be readily confirmed by all of us who went there with them; you're preaching to the choir on that one. And of course many first-rate minds come out of third-tier schools and have to prove themselves in other ways (and I'm sure many frequently do). But that doesn't go nearly to proving that the greater number of the smartest (such as, say, John Roberts) do still go to Harvard and the rest.

But I still insist that we have a lot of reason to worry about anti-intellectualism. I mean, we're talking about someone being nominated to the Supreme Court with a resume that causes many people to wonder whether she's even qualified to sit there, and what is the response of (at least many) conservatives? They worry whether she's conservative enough, but not whether she's competent! Surely that's indicative of a culture that undervalues intellect (and intellectualism).

(I could bring it closer to home and point out that you apparently think Roe is stupid "crap" simply because you disagree with it. That, too, I should think would be indicative of the same.)

None of the posts in this thread supporting Miers have argued that she is a first-rate legal mind. Rather, they have all argued that she is not unqualified simply because she did not go to an elite law school.

I, for one, would like to hear somebody point to a credential of hers that qualifies her to be on the U.S. Supreme Court. The fact that she is a good lawyer doesn't mean much. The fact that she was White House counsel is irrelevant -- the President can appoint anybody to be the White House counsel. If all that it took to qualify somebody to sit on the Supreme Court was a brief time as White House Counsel, then any president could appoint anybody with a J.D. to be the White House counsel and then elevate them to the Supreme Court at the first opportunity.

Is there a SINGLE PIECE OF WRITING on the subject of constitutional law, written by Miers and showing high qualities of mind? This is a lawyer who spent time dealing with a state's LOTTERY problems and, apparently, wrote only minimal practice-oriented articles.

How unlike you to shout, Ann.

I'm sure there are dozens of writings by Miers having to do with constitutional law. Since she has been the counsel to the office of the President, there are aspects of conlaw that she must be familiar with, backwards and forwards: separation of powers re faith-based initiatives? Posse comitatus (sp) issues over rescue efforts, and plans for potential bird-flu pandemics? Are these issues constitutional enough for you? Aren't they the type of issues she must be dealing with in her current position?

What you're complaining about is the fact that she isn't published in journals or law reviews. But, as Beldar has pointed out numerous times, it's quite clear that Miers is a persuasive writer, because she is a successful trial lawyer. You can't win cases without being persuasive. Her work for the President has been, I'm completely sure, much more relevant to constitutional issues than you seem to think it is.

And the fact that you're going back to her work on the state lottery, completely ignoring the significant responsibilities and roles she has taken on since then, is quite frankly, odd. You really are coming across as a snob, at least to me.

Sloanasaurus said...I think this nomination is all about culture. The reaction to Miers is a reacton from the elite who feel a little uncomfortable with the non-intellectual culture of America

Oh, I really don't think so. Very few of the negative reactions that I have seen have anything to do with which law school she went to, and everything to do with concerns about whether this nominee is a conservative, whether she is an originalist, whether she even HAS a judicial philosophy, whether she is even vaguely qualified to sit on the court. I have noted that a nominee should have a paper trail, and that is something only Judges and academics really develop in any serious sense. So I suppose that is an "elistist" view in the sense that I want membership of the "legal elite" to be an irreducable qualification of Supreme Court nomination - but I am not a member of that elite, and never will be. If this is elitism, it is elitism in the same way that I would like for my chef to have been a cook before I hire him.

The Supreme Court is not a represenative body, there is no "mediocrity seat" as Senator Hruska demanded; it is the elite of the elite, and while one need not have the qualifications of a John Roberts to be nominated - indeed, I opposed Roberts even in spite of those spiffy qualifications - one must meet certain basic criteria which there is no evidence this nominee does. "Trust me" is not a legal argument.

Ann:Is there a SINGLE PIECE OF WRITING on the subject of constitutional law, written by Miers and showing high qualities of mind? This is a lawyer who spent time dealing with a state's LOTTERY problems and, apparently, wrote only minimal practice-oriented articles.

Terrence - "If all that it took to qualify somebody to sit on the Supreme Court was a brief time as White House Counsel, then any president could appoint anybody with a J.D. to be the White House counsel and then elevate them to the Supreme Court at the first opportunity."

They can. Even being a lawyer is not a prerequisite, technically, which is why I joke that Bush should nominate Donald Trump.

Ann, Having worked for a large Dallas law firm (not as a lawyer and not Mier's firm) I would never suggest that SMU was a lower tier law school than UT. That may be the perception but its not a fair criticism. There may be others but that's not one of them.

Counselor to the President sounds like a pretty difficult job. I wonder how many lawyers in the country have the qualifications for that job

Don't you think, though, that being a lawyer (which is inherently a results-oriented job), even a very high-up government lawyer, is a very different proposition to being a Supreme Court Justice (which should be a process-oriented job)?

"...really, I think that Texas has nothing to do with it. In case you haven't noticed, Washington DC is run by Texans -- the Bushes, Dick Cheney, Tom DeLay...."

Yes, but is there anyone from "Texas" on the Court... I see a lot of Harvard and Yale, but no Texas.

When I refer to Texas, I am talking about culture, not necessarily the state. Texas had much to do with electing George W. Bush. GW Bush is all about Texas, which is why the French dislike him so much. Now Bush is putting Texas on the Court and people are squirming.

Bush doesn't want a "legal mind" on the Court, he wants Texas. He wants someone who will rule based on what the laws actually say. In Bush's mind this should be fairly simple and straight forward. He just needs to find someone who will do it, because to Bush most "legal minds" are just to plain kooky to trust to carry out this simple directive.

George Will's "criticism" strikes me as so much ad hominem and unfounded assertions. Let's see:

1. "Let's ignore or belittle everything Miers is reputed to have done, after all the credentials I believe to be important are the only important credentials."

2. "Let's imagine that Bush has no clue as to what kind of justice he wants, even given that I'm anti-war for the most part, and mostly a fiscal-conservative, I only supported him politically because I trusted him on nominations. Or was it because he wasn't a democrat?"

These are not intellectual charges. You can call them credentialist (even elitist), emotive, pseudo-intellectualist, but let's no degrade intellectualism.

What may be intellectual criticisms?

1. "We think George Bush has reason to lie, and for these reasons."2. "We think Harriet Miers has reason to lie, and for these reasons."

But really I don't see how you can come to a conclusion yet other than that you don't know enough to draw a conclusion. That should be the intellectualist position. Everything else at this stage, unless you're actually presenting evidence and analysis of that evidence, is just so much screeching to these ears.

"Sloanasaurus said... "...In any case, the less elite your school and your academic record, the more other evidence we need...."

This is ugly....

Counselor to the President sounds like a pretty difficult job. I wonder how many lawyers in the country have the qualifications for that job."

As a graduate of a "second-tier" law school let me fully agree that "the less elite your school and your academic record, the more other evidence we need". It is reality for everything we do. If you want a job at an elite firm or if you want a clerkship, you have to do something that distinguishes you from your peers at the second tier school. Something that you can compete with the graduates of other more prestigious institutions. Is this fair? Absolutely. For example, let's say you have to choose between two doctors for a heart surgery, you don't know anything about either except you get your hands on their medical diplomas. One graduate with honors from Johns Hopkins, the other was a graduate (no honors) from a second (or worse) tier school. Which do you choose if that is your only information?

I think the two qualifications she had for her current job are that she knew GWB and was a sycophant to him. If those are the qualifications, I do not know many lawyers who are qualified. If the pertinent qualifications are being an excellent litigator and/or managing partner, I suspect the number of qualified persons is at least equal to the number of big cities in this country.

!. The "snob" charge is ridiculous, considering the nature of the position. We have an OBLIGATION to demand excellence for this lifetime postion at the top of an independent branch. This is NO PLACE to be nice about it. Sorry to offend people who don't want to think a high degree of mental skill is needed for this job. I wouldn't hold myself out as capable of doing it.

2. As to those writings she's done as counsel to the President, we aren't allowed to see any of them. They are privileged!

3. "Persuasive writng"? That is SO not enough! Sure, lawyers can draft briefs pushing the side they know they are on, but that's not what a judge does. Persuasive writing would at most serve to hide flaws in reasoning and outcome-based decisionmaking. We are ENTITLED to better.

(Sorry for the all caps, Joan, but it's tought to put in italics in the comments.)

The following is the most compelling argument as to why Miers would be a good choice for the court. Bush is a results-oriented guy, and Miers is a no-nonsense type of gal. BTW, I'm not too fond of 43, but both his SCOTUS nominees have been excellent (for different reasons). And Bush is big on rewarding friends. Why the granny-bashing?

From http://www.slate.com/id/2127479/

"I like her. I don't care much about the lack of alleged expertise in appellate practice. The Supreme Court is an easy job. The best lawyers in the country write the briefs and argue the cases. The smartest young law school graduates serve as clerks and do most of the actual writing. The appellate court opinions they're reviewing are also written by smart folks who know how to present the issues. The justices only have to make decisions…

In other words, of all the places to put a possibly incompetent crony, the Supreme Court is the spot where there's least potential for damage. If the president wants to promote friends, that's the right place to do it.

I also suspect she isn't incompetent. She worked her way to the top of the inbred Dallas legal community without family connections--and without a penis…

… The Supreme Court decides over 100 case a year, and about 99% of them have nothing to do with abortion. More than half have no political dimension at all. Many of them have real effects on the stuff historyguy does every day when he's not on the fray, which is litigate cases in federal court. Unlike most of the other justices, Harriet Miers is an actual lawyer with experience in private practice who had to read Supreme Court cases and write briefs on behalf of clients making sense of them. Unlike the others, she knows that the difference between a useful and a useless Supreme Court decision.

…On the constitutional case, she'll probably vote the same way as anyone else President Bush would appoint. That's a wash, not a negative.

Democrats should ask the tough questions at the hearings, focusing on the Bush Administration scandals just for embarrassment purposes, but there's no point in opposing her."

Regarding whether the job of counsel to the president required contitutional heavy lifting--wouldn't that have been done by the AG's office? She's his personal lawyer; she wouldn't be called upon to address constitutional issues.

All this talk of credentials and first rate legal mind and such is all a big pile of manure.

"First rate legal minds" are the ones who come up with explanations on how "public use" is not really "public use," first rate legal minds are the ones who tell us that we can't make decisions on when life begins until the medical, legal, religious, etc come together and make a consensus all while taking away the right to do such a thing in the legislature.

First rate legal minds tend to be second rate minds. Let me repeat it...first rate legal minds are not always that bright. Have you ever read a Supreme Court Tax Opinion, it's like they don't know math. They can't follow the numbers. They're clueless, so forgive me if I think first rate legal minds is horseradish.

I'd much rather have someone who's smart enough to read "public use" for what it means than some convoluted idea.

The snob charge is not ridiculous. If the president decided to appoint a CPA to the Supreme Court these same elitists would be running around even more so. Lawyers thing they own the Supreme Court...Lawyers ought not.

The more I think about this nomination, the more comfortable about it I have come.

It is the snobbery, that someone should be a bookworm or a prolific publisher of legal articles that is so grotesquely on display. But really who's smarter... the person who winds away at their tediously life writing articles on some finer point of law that is completely superfilous, or the individual who gets to know the people on the rise, and earns their trust, all while, working hard, but not too hard.

If we have an OBLIGATION to demand EXCELLENCE then Judge Robert Bork should have been confirmed without a whimper, and a Judge McConnell should not be the least bit controversial. We aren't likey to get much excellence, though, because certain Senators have made it clear that such excellence is unacceptable.

The only OBLIGATION you have, Prof. Althouse, is to tell your two U.S. Senators: NO!! to Harriet Miers, because that is what you clearly and fairly believe. My obligation is to tell Sens. Cornyn and Hutchison something as well.

One point I have not yet seen raised. Ms. Miers is an evangelical Christian, and theoretically, evangelical Christians are opposed to gambling. Yet, she ran the Texas Lottery, which oversees probably one of the most pernicious forms of legal gambling that exists. I don't know if this means anything or not. Perhaps this is a sign that she's a pragmatic sort and is able to keep her faith apart from her professional life.

Nevertheless, it does nothing to convince me she's qualified for the Supreme Court. I'm with those who want to see some evidence--any evidence--of a qualification to be a justice, other than "she's a top notch lawyer." Great, she's a top notch lawyer. The country is filled with top notch lawyers. Johnnie Cochrane was a top notch lawyer--he got a double murderer acquitted, and on national TV. But I don't think anyone other than O.J. would say that qualfies him to be a Supreme Court justice. (yeah, I know, he's dead, but work with me, people).

"...Nevertheless, it does nothing to convince me she's qualified for the Supreme Court..."

How about Rehnquist, or Thomas. Were you convinced they were qualified..were they. Neither of them were judges either (Thomas was for 6 months) and neither were "top notch" lawyers.

Sandra Day O Conner was a judge on the state court of appeals in Arizona for a few years and was in the Arizona state senate before that. Was she qualified? H Miers is far more distinguished than O Conner ever was...

Sloan: All the people you name were underqualified but also much more qualified than Miers. Thomas had a demonstrated scholarly approach to constitutional law. But I was a supporter of none of them at the time. (Full disclosure: I signed the anti-Bork lawprof letter.)

Is Lanny Davis qualified for a Supreme Court seat? How about Lloyd Cutler or Clark Clifford?

Doesn't Miers's service as White House Counsel necessarily mean that she is intimately familiar with all the major issues facing this country and the world?

Doesn't this mean that whatever her background/law school, etc. she has attained a position that most people would concede is exceptional?

Doesn't the Court render essentially political decisions on major issues anyway?

By the way, Ann, rumor has it that you once served as an aide at Krazy Jim's Blimpy Burgers (motto: "cheaper than food since 1953") in Ann Arbor? Does that exclude you from Supreme Court consideration?

ann, for once, i agree with everything you have written in this comment

heading a regional law firm is an outstanding qualification ... to head a regional law firm. nothing more, nothing less.

SMU is clearly inferior to Texas, sorry, but it is true.

this does not disqualify her, but, as ann said, it puts the onus more clearly on her to demonstrate that she has a first rate legal mind capable of tackling the issues that reach the supreme court, that is, issues that the venerable and esteemed judges on the circuit courts have been unable to resolve consistently, that is, the very toughest of legal questions . she has nothing on her resume to indicate a first rate legal mind, nothing at all.

for the poster who said that miers' credentials are no worse than rhenquists, ask yourself if you still stand by that comment after learning that rhenquist clerked for a supreme court justice and graduated first from his class at Stanford.

and as for the poster who said that first rate legal minds equal second rate intellects, well, i say i have seen first rate intellects, and you, sir, are not in possession of one

Yoy have no idea why I dislike Roe. I didn't give it so don't assume a reason. It's perfect if one likes poorly reasoned, sloppily organized and results-oriented judicial opinions. Scalia's dissent in Casey is much better written and more coherent (as is the majority opinion). As a history of abortion through the ages it's fine as far as that goes. As an expression of a coherent and workable for legalizing abortion it's a disaster and anti-democratic. Courts are anti-democratic by nature I realize but Roe is beyond the pale (as are Raich and Kelo).

Elite institutions serve an important role no doubt, but are we to put our trust in institutions where the faculty get the vapors over the president making perfectly reasonable comments about women in the sciences? Are we to trust institutions that have speech codes and don't allow military recruiters on campus because they disagree with the message? And you call me anti-intellectual?

I don't know if Miers is "qualified". We've had plenty of justices from "elite" institutions who turned out to be disasters or non-entities. Harvard is one indicator of comeptence and not a very telling one in the grand scheme.

I could bring it closer to home and point out that you apparently think I am stupid simply because you disagree with me. That, too, I should think would be indicative of the elite snobbery of which I'm talking.

Sloanasaurus - Yes, but is there anyone from "Texas" on the Court... I see a lot of Harvard and Yale, but no Texas.

Nobody is "from" Yale, and nobody is "from" Harvard. Trust me on this one. Chief Justice Roberts is from Buffalo and Indiana. Rhenquist was from Milwaukee. bader Ginsberg is from Brooklyn. I could go one and on. Is Ginsberg more "Columbia" than she is "Brooklyn?" Trust me, anybody who has lived in New York knows what a big difference that can make. Is Roberts more "Indiana" than he is Harvard, or more Beltline than he is Indiana, or than he is Harvard?

I went to Yale. Plenty of my classmates, including the woman who lived across the hall from me, were from Texas. The fact that they went to an 'elite' institution doesn't make them any less of a Texan, and the fact that they are from Texas doesn't make them any less of an Eli.

To the extent that her nomination MIGHT be seen as a culture-based decision, I would say it is anti-intellectual culture versus intellectual culture. Not Texas versus New England -- that's just silly.

I hardly said that I was a first rate mind, so I hardly see what your ad hominem has to do with anything. In any event, I did not say that first rate legal minds were second rate minds, but that they tend to be.

A lawyer merely deconstructs and obscures with language. Other disciplines involve making concepts more clear and making things more accessible to outsiders. An architect must be skilled enough so that a construction worker can decipher the blueprints, and a engineer design schematics for whatever project, the tool and die worker must use his or her expertise to craft something that meets the engineer's expectations.

Legal minds in my experience have a hard time with normal life concepts. But you create an illegitimate qualification for the Supreme Court, and that is that an individaul be a first rate legal mind, and quite frankly that will diminishe the capacity of the Supreme Court.

Read some opinions where the justices venture into technical areas. That 9 supposedly first rate legal minds could not catch simple math errors, does not speak well generally for first rate legal minds.

First rate legal minds seem to equate their being first rate, to meaning that they are some of the smartest people in the world. You rarely find first rate non-legal minds who carry the same swagger. That says plenty to me about different "minds"

Wonder what all you nervous nellies are going to say when Miers levels Schumer, Biden and Kennedy in the hearings. Since her long string of constitutional writings is rather short, don't you think the Senators might delve into her qualifications a bit? I suggest everyone here watch the hearings and see if you can then discern why Bush appointed her. If she's a fish out of water, you can then congratulate yourselves on your prescience. This Harriet hysteria is unbecoming.

Brylin: How do you know about me and Krazy Jim's?! I've never blogged about it, I don't think. I worked with Ruby. Does anyone remember Ruby? The customers loved her. Me, they would ask, Where's Ruby?, if she wasn't there. Otherwise, they would ignore me. Krazy Jim used to grind the meat in the cooler in back, and then we'd have to use ice cream scoops to turn all that meat into meat balls to throw on the grill -- four for a "quad" -- and slap flat with a big heavy spatula. Those were the days.

As to why I signed the anti-Bork letter: I can't remember my exact reasoning, but it would have had to do with my concern that he would take too narrow a view of constitutional rights. I have high standards about who gets on the Court. The standards have changed over time, but they are quite high.

Simon: Like John Roberts, I think it's fair to call it substantive due process. I think the Constitution protects individual liberty in a substantive way, that there are judicially enforceable limits on how much government can intrude on us.

Oh, come on, where did I call you stupid? If you wanted to display your bruised feelings, you only needed to wait a while longer---I'm ill-tempered and a good bet for saying one thing too far. But I haven't said that yet.

I don't think I was as much as calling you anti-intellectual before as suggesting it's cause for concern. But this paragraph:

but are we to put our trust in institutions where the faculty get the vapors over the president making perfectly reasonable comments about women in the sciences? Are we to trust institutions that have speech codes and don't allow military recruiters on campus because they disagree with the message? And you call me anti-intellectual?

Concerns me. Talk of "are we to trust academics?!" is usually... indicative of a skepticism that goes beyond healthy, and --- enough trying to be diplomatic: I was not previously prepared to call you anti-intellectual, but I wonder if I shouldn't now! If that's how you feel about universities, it does make me suspicious.

Two things: I don't know how many universities have speech codes, per se, but they're pretty rare. And military recruiters are not disallowed because someone disagrees with their message; law schools typically don't allow any employer that discriminates in their hiring to interview on campus.

On Roe: I assumed you thought it was a stupid opinion, you say it is a "poorly reasoned, sloppily organized and results-oriented judicial opinion[]." You'll forgive me if I don't see my error.

And Kelo, although you may not like the result, is [ahem] quite emphatically not "anti-democratic." Frankly, I'm not sure Raich fits the bill either---if the people in their infinite wisdom wanted to undo the law in question, all they would have to do is elect a different Congress. I really think you're talking about federalism values there rather than majoritarian ones.

Terrance, I was using "Texas" as a term to describe the culture of "cultural conservatives" as opposed to the more intellectual types. These different groups of conservatives all generally have the same views, they just run in different circles and encourage different means to achieve similar ends.

I would bet that most of the conservatives on this board fall into the intellectual category. The Texas conservatives are watching NASCAR, not blogging.

I think that Bush wanted someone on the Court from this Texas culture. So he chose Miers.

My problem isn't with her lack of judicial experience, it's that there are no elite credentials of the sort that say this is a superior intellect -- a mind that should decide the most important issues for us over a period of decades! If you think about it that way, her nomination is an absurd imposition on us by the President.

Well Prof, I think others have already successfully raked you over the coals for this final volley about Miers' lack of elite credentials.

If you are inclined to think that elite credentials are proof positive that someone is a brilliant mind in their field, then I'd like to hear your opinion of President Bush 43's intellect, because on paper, he is a graduate of Yale and Harvard Bus School.

I seem to recall you were not overly high on Mier's assessment of Dubya's being "the most brilliant man she ever met", but perhaps then, that's why she does.

Because in large part, she sees those diplomas and thinks, all bright-eyed and recalling her meagre SMU credentials, "Whoa".

Never mind that "right-wing" remark, which was thought-provoking at least.

Or the Roberts-not-worldly-because-he-was-an-altar-boy remark, months ago.

I found this one topped both in terms of sheer judgemental snobbiness...but hey.

Ann:Like John Roberts, I think it's fair to call it substantive due process. I think the Constitution protects individual liberty in a substantive way, that there are judicially enforceable limits on how much government can intrude on us.

Well, I don't necessarily have a problem with that. My concern is really pretty simple: what is it that defines the scope of judicial protection from government action, and what coherent theory can be used by a judge to differentiate between a protected liberty and an unprotected one? Why, for example, is freedom of contract protected but freedom to abort one's child not protected? Or, if you like, why is freedom to abort one's child protected but freedom to contact one's work for one's preferred wage not protected?

If there is a good criterion that you can offer, please do. I would submit that there is none, but I stand to be corrected. :)

Ann, I am completely unpersuaded by your statement that it's too hard to do italics in comments. You are a perfectly adequate typist, and I'm sure you can master the angle bracket keys if you care to try.

I'm going to stand by my statement that you are coming across as quite a snob here. I do not disagree with your premise that we are entitled to someone with a "superior intellect" -- what I'm reacting to is your apparent belief, absent any concrete information, that Harriet Miers is "not too brite," as James Taranto would say. The fact is, you don't know, none of the people passing such negative judgements know! Why can't you just wait to see how she aquits herself in the hearings? Nope, you have her written off as sub-par already.

I find that very interesting because you have, in the past, written that you'd like see justices not be such windbags, and be a bit more practical. It seems that Miers would likely do both of those things -- but suddenly, those criteria are no longer considered at all.

If Miers gets up in front of the committee and can't articulate her judicial philosophy, then I'll be hoping her nomination goes down in flames along with the rest of you. But the opinions presented here contra Miers are just that, with precious few facts to back them up. At least when Beldar goes to bat for Miers, he gives concrete examples in support of his arguments. All the negativity here generates lots of heat but little light.

I think that anybody who looks for NASCAR culture first and judicial qualifications second is putting the cart before the horse. For instance, Potter Stewart was a big baseball fan, John G. Roberts was the captain of his high school football team, and Justice Scalia is an avid hunter. That's pretty far towards the "NASCAR" end of the scale. Nonetheless, Scalia was a leading scholar, a tenured professor at one of the best law schools in the country, and for several years served on the Court of Appeals for the D.C. Circuit, which is the prime grooming ground for Supreme Court justices. Miers is NASCAR, but with none of the other stuff. I'm sure that, if culture was his primary concern, he could have found a number of red-blooded red-staters who like NASCAR and still have plenty of more relevant experience than Harriet Miers.

a mind that should decide the most important issues for us over a period of decades!

I sure hope not. It's not the job of teh Supreme Court to decide the important issues, it's the job of the Supreme Court to apply the decisions made by the Legislative and Executive Branches, both the current ones (the laws they've passed), and the past ones (laws, the Constitution, and its Amendments).

If she's making decisions for us, it's because she's decided to arrogate to herself power that properly belongs to others.

Ann, I actually didn't know that you worked at Krazy Jim's, but knew that you graduated from UM. When I went to the law school I ate many burgers there. And visiting my daughter who graduated in April, I found that the quality was still the same at Krazy Jim's (she wouldn't eat there, the snob!)

I was trying to inject a little levity in an otherwise all to serious collection of commentary.

But I am entirely serious that the Supreme Court is essentially political.

Sloanasaurus: There are some errors in your list of years in private practice. In particular, Stevens was in private practice for most of the 1950s and 1960s; according to Oyez he actually has 21 years in private practice, more than any other current justice. The Supreme Court official biographies indicate that Souter spent 2 years in private practice (not zero) and Kennedy spent 14 years in private practice (not 12).